The plea deal special counsel Robert Mueller granted to Paul Manafort on Friday appears built to be pardon-proof.
That doesn’t mean President Donald Trump won’t try to legally absolve Manafort anyway, a step the president has considered taking for months. But Friday‘s events mean Trump’s ability to contain the legal damage from his former campaign chairman is now severely limited.
The first is that Manafort is already talking. One obvious rationale for a pardon would be to reward Manafort for holding out against Mueller’s pressure for cooperation in building a case against the president or those close to him. But Manafort’s lead lawyer said Friday his client has already cooperated with Mueller’s team, and Friday’s plea agreement says that Manafort “shall cooperate fully, truthfully, completely and forthrightly with the Government and other law enforcement authorities identified by the Government in any and all matters to which the Government deems the cooperation relevant.”
Even if Trump might have hoped to stop Manafort from singing, Friday’s plea suggests he has already reached the first chorus.
The pivotal questions Mueller’s lawyers want to ask — including about a June 2016 Trump Tower meeting with Russians attended by Manafort along with Donald Trump Jr. and the president’s son-in-law Jared Kushner — have likely already been asked and answered with Manafort’s testimony locked in.
“Mueller likely already has all of Manafort’s information,” former U.S. Attorney Preet Bharara tweeted Friday. “You get the information before you offer the agreement.”
Some attorneys also believe the deal Mueller gave Manafort — accepting a guilty plea to just two of seven charges he was facing — signals that the former Trump campaign chief didn’t just agree to answer prosecutors’ questions but produced answers Mueller’s team found useful to some aspect of a case it is actively pursuing.
“It certainly seems like Manafort had to give up something to prosecutors,” Fordham law professor Jed Shugerman said. “One way or another, Manafort has given information significant enough to get a deal that would benefit him.”
Second, Mueller managed to get concessions from Manafort that limit the value of any pardon. Manafort admitted guilt on virtually all of the charges he faced in both Washington, D.C., and Virginia, including a slew of bank fraud charges. Each of those admissions could give state or local prosecutors a potential charge against Manafort that would survive even in the event of a Trump pardon, since he can pardon only federal offenses.
“By admitting to all of the facts in both indictments, the conviction is pardon proof in the sense that if Trump ever pardoned Manafort, a state attorney general could take Manafort’s admissions in the plea and use them to indict Manafort for state charges,” former Watergate prosecutor Nick Akerman said.
The steps Mueller’s lawyers have taken mean a pardon won’t likely be a particularly effective way of discouraging Manafort from offering Mueller whatever Manafort has that might be incriminating toward Trump, Trump Jr., Kushner or others.
However, if Trump wants to pardon out of mercy or spite, he will still have the power to do so. Such a move could immediately trigger Manafort’s release from jail and relieve him of the duty to turn over tens of millions of dollars in property and bank accounts to the government. State authorities may catch up with Manafort, but precisely how that will play out is uncertain.
Even wording a pardon to relieve Manafort of not just any federal prison sentence but also his agreed forfeitures of property and cash could be complicated.
Some observers believe Trump’s lawyers may consider a Manafort pardon such a bad idea that they would be unwilling to go to those lengths to craft one, particularly because Mueller and Democrats in Congress could see the move as obstruction of justice.
“I don’t think Trump has the legal skill to do it himself,” said Shugerman. “And if you’re [White House lawyers] Don McGahn or Emmett Flood, there’s a certain line you don’t want to cross.”
During a 35-minute presentation to U.S. District Court Judge Amy Berman Jackson as Manafort sat listening nearby, prosecutor Andrew Weissmann seemed to highlight the mundane fact that the former Trump campaign chair had agreed he was guilty of the seven bank fraud charges the jury had deadlocked on in the Virginia case.
“There are other parts of the statement of offense that don’t relate to a plea of guilty here, but are admissions by the defendant to all of the remaining bank fraud counts on which the jury was hung in the Eastern District of Virginia,” Weissmann said. “They are set out in writing.”
Manafort’s agreement on that point could be critical to pursuing state cases against him if Trump grants a federal pardon. Many of the other charges against Manafort, like money laundering, were incorporated in the broad “conspiracy against the United States” charge he pleaded guilty to Friday. Because of laws in some states aimed at preventing state and federal prosecution for the same crimes, that wording might be enough to block some states from prosecuting him over those issues.
However, as Weissmann emphasized, Manafort’s admission to the bank fraud allegations was not part of any specific charges he pleaded guilty to Friday.
“It seems to preserve those charges and create an opportunity for future state prosecution,” Shugerman said. “It preserves Illinois, California, New York, Virginia as well as Florida as potential jurisdictions to go after him on state charges.”
Other uncertainties remain about a potential pardon. It might nullify Manafort’s obligation under the deal to cooperate with the feds, but a pardon could also make it easier to force him to testify in front of a grand jury since there would no longer be a threat of federal criminal prosecution. However, the state prosecution threat would likely still be viable. It’s unclear whether a federal judge would force Manafort to testify under those circumstances. It seems likely he would be required to testify, with the consequence for any state prosecution to be sorted out later.
It could also be tricky for Trump to block any forfeitures of property or money Manafort has agreed to. Experts say the forfeitures don’t usually kick in formally until a defendant is sentenced. Manafort’s sentencings could be months or years away. Language in Manafort’s plea documents seems to leave open the possibility that prosecutors could bring civil litigation to take the funds and property even if the criminal proceedings come to an abrupt end.
Some experts say Trump can use executive clemency to block that, too.
“The pardon power does in fact extend to any sort of penalty imposed by the government, civil or criminal. A lot of early cases involved pardons to release ships that had been forfeited in what we would now regard as civil process,” Love said.
But others say Trump’s authority to do that through clemency is less clear. He might have to order his Justice Department to abandon such an effort.
“Where the assets are subject to civil forfeiture, it’s not clear a pardon would immediately expunge that part of the plea,” Shugerman said. “We’re in uncharted territory. … There is no precedent for this.”
Another question is whether it’s ethical for prosecutors to try to structure a plea deal in a way that seems intended to frustrate the president’s constitutional power to issue pardons.
One prominent legal ethicist, New York University law professor Stephen Gillers, called such crafting “entirely appropriate.” He noted that the Supreme Court declared more than 80 years ago that prosecutors’ duty is to ensure “that guilt shall not escape nor innocence suffer.”
“I think Mueller can insist on sworn admissions that would establish a violation of state as well as federal law,” Gillers said. “It is important that the plea deal include conspiracy to launder money and lots of it, to the point of kleptomania. The charge is supported with abundant factual detail, which I think will make it very hard to suggest that Manafort is an innocent man.”